UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen

United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850 

www.ca7.uscourts.gov 

 

NOTICE OF ISSUANCE OF MANDATE

April 15, 2022 

To: Gary T. Bell

UNITED STATES DISTRICT COURT

Northern District of Indiana 

Fort Wayne, IN 46802-0000

No. 21-1358 

GORSS MOTELS, INC., 

 Plaintiff - Appellant

v.

BRIGADOON FITNESS INC. and BRIGADOON FINANCIAL, 

INC., 

 Defendants - Appellees

Originating Case Information:

District Court No: 1:16-cv-00330-HAB

Northern District of Indiana, Fort Wayne Division

District Judge Holly A. Brady

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A 

certified copy of the opinion/order of the court and judgment, if any, and any direction as to 

costs shall constitute the mandate. 

RECORD ON APPEAL STATUS: No record to be returned

form name: c7_Mandate (form ID: 135)

Case: 21-1358 Document: 00713988624 Filed: 04/15/2022 Pages: 1

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 1 of 23
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

 

Everett McKinley Dirksen 

United States Courthouse 

Room 2722 - 219 S. Dearborn Street 

Chicago, Illinois 60604

Office of the Clerk 

Phone: (312) 435-5850 

www.ca7.uscourts.gov 

 

FINAL JUDGMENT 

March 24, 2022 

Before 

 FRANK H. EASTERBROOK, Circuit Judge

 ILANA DIAMOND ROVNER, Circuit Judge

 THOMAS L. KIRSCH II, Circuit Judge

No. 21-1358 

GORSS MOTELS, INC., 

 Plaintiff - Appellant 

v. 

BRIGADOON FITNESS INC. and BRIGADOON FINANCIAL, 

INC., 

 Defendants - Appellees 

Originating Case Information: 

District Court No: 1:16-cv-00330-HAB 

Northern District of Indiana, Fort Wayne Division 

District Judge Holly A. Brady

The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of 

this court entered on this date. 

form name: c7_FinalJudgment (form ID: 132) 

Case: 21-1358 Document: 00713988623 Filed: 04/15/2022 Pages: 1

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 2 of 23
In the

United States Court of Appeals

For the Seventh Circuit

No. 21-1358

GORSS MOTELS, INC.,

Plaintiff-Appellant,

v.

BRIGADOON FITNESS, INC. and

BRIGADOON FINANCIAL, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Indiana, Fort Wayne Division.

No. 1:16-cv-00330 — Holly A. Brady, Judge.

ARGUED SEPTEMBER 24, 2021 — DECIDED MARCH 24, 2022

Before EASTERBROOK, ROVNER, and KIRSCH, Circuit Judges.

ROVNER, Circuit Judge. Gorss Motels, Inc. brought an action

under the Telephone Consumer Protection Act (“Act”) seeking

statutory penalties for itself and on behalf of a class of recipients of purportedly unsolicited facsimile advertisements sent

by the defendants. The district court declined to certify the

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 3 of 23
2 No. 21-1358

original class or a modified version, finding in each instance

that common issues did not predominate. Gorss then proceeded to summary judgment on its own claim and prevailed.

On appeal, Gorss challenges the district court’s denial of class

certification. We affirm.

I.

At the relevant time, Gorss Motels, Inc. (“Gorss”) operated

a Super 8 Motel as a franchisee of Wyndham Hotel Group, LLC

(“Wyndham”), under a franchise agreement signed in October

1988.1

 Gorss agreed in that contract to furnish the facility in

accordance with Wyndham’s standards, and to purchase from

Wyndham or its approved vendors an extensive list of supplies

and equipment ranging from soap and toilet tissue to carpeting

and mattresses. Brigadoon Fitness, Inc. (“Brigadoon”)2

 sells

fitness equipment to hotels and others. Brigadoon is an

approved vendor for Wyndham franchisees and was subject to

a “Sourcing Agreement” with Worldwide Sourcing Solutions,

Inc. (“Worldwide”), a wholly-owned subsidiary of Wyndham

Worldwide Corp. and an affiliate of Wyndham. Under the

Sourcing Agreement, Brigadoon is allowed to sell fitness

1

 Gorss signed its original twenty-year franchise agreement with Super 8

in 1988. Super 8 was later acquired by Wyndham, and Gorss executed an

Amendment to the franchise agreement in 2009, extending the franchise

relationship five more years. In 2014, Gorss signed an entirely new

franchise agreement with Wyndham. The 1988 agreement, as amended in

2009, governed at the time of the relevant events.

2

 The parties treat Brigadoon Fitness, Inc. and Brigadoon Financial, Inc. as

the same in this appeal. We will refer to the defendants jointly as “Brigadoon.”

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 4 of 23
No. 21-1358 3

equipment to Wyndham franchisees through marketing

programs. As part of this arrangement, Wyndham periodically

provided contact information for its franchisees, including fax

numbers, to Brigadoon. Brigadoon had similar “approved

vendor” relationships with others in the hospitality industry

including Interstate Hotels Group, Best Western, Choice

Hotels, and LaQuinta, each of which in turn had contractual

relationships with their franchisees. As was the case with

Wyndham, each of these hotel chains and their franchisees also

periodically provided Brigadoon with contact information,

including fax numbers that had been collected at various times

and under differing circumstances. 

Gorss provided contact information, including fax numbers, to Wyndham and others for business purposes and for

directories that were available to the hospitality industry and

to the public. Steven Gorss also attended conventions and

trade shows on behalf of Gorss, including in 2012, and personally provided contact information to Wyndham-approved

suppliers at these events, sometimes by swiping an identification badge at a convention booth. Gorss received a fax from

Brigadoon on April 17, 2013, advertising its fitness equipment

and offering a special deal on certain purchases. The fax was

part of a large transmission to more than 10,000 recipients.

Brigadoon formulated the list of recipients from a variety of

sources. It obtained some fax numbers from Wyndham as part

of the Sourcing Agreement. Other sources for contacts included: Brigadoon’s own databases of existing or potential

customers with whom Brigadoon had previously interacted;

other franchisees of major hotel chains with whom Brigadoon

had vendor status; hotels that were members of or operating

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 5 of 23
4 No. 21-1358

under a large purchasing network known as the National

Purchasing Network, which authorized Brigadoon to market

to its members; and trade show attendees. 

The Act prohibits the use of “any telephone facsimile

machine ... to send, to a telephone facsimile machine, an

unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(c). An

“unsolicited advertisement” is “any material advertising the

commercial availability or quality of any property, goods, or

services which is transmitted to any person without that

person’s prior express invitation or permission, in writing or

otherwise.” 47 U.S.C. § 227(a)(5). Although the Act contains a

safe harbor for senders who have an existing business relationship with fax recipients, the April 17, 2013 fax did not comply

with the statutory requirements for that protection. See 47

U.S.C. § 227(b)(1)(c) and (b)(2)(D) (describing the requirements

for “opt out” notices that would have informed recipients how

to stop receiving future fax advertisements). 

When Gorss filed suit under the Act, it sought to certify a

class under Rule 23(b)(3) of all recipients of the April 17, 2013

fax advertisement. Noting that plaintiffs bear the burden of

proving entitlement to class certification under Rule 23, the

district court focused on the Rule 23(b)(3) requirement of

“predominance,” which calls for the court to find, among other

things, “that the questions of law or fact common to class

members predominate over any questions affecting only

individual members.” Because the issue of whether the faxes

were solicited is key to recovery under the Act, and because

Brigadoon assembled the list of recipients from a number of

different relationships and circumstances that could well

indicate that the recipients did in fact solicit the fax advertiseCase: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 6 of 23
No. 21-1358 5

ments, the court ultimately concluded that Gorss failed to meet

its burden of demonstrating that common issues of fact

predominated. Instead, the court found, the case presented the

“specter of unlimited mini-trials” to determine the precise

relationship between sender and recipients so that the court

could determine whether prior express permission to send the

faxes had been granted in each instance. For example, some

recipients arguably provided permission in person at trade

shows; others may have consented through one of many

different versions of franchise agreements; still others may

have solicited fax advertisements through their membership

and participation in the National Purchasing Network; and

some arguably provided consent through more than one of

these means. The court therefore declined to certify a class of

all recipients of the April 17, 2013 fax. Gorss then moved for

reconsideration of the order denying class certification or

alternatively for certification of a class of recipients whose fax

numbers were obtained from a list of Wyndham franchisees

only, and whose numbers had been supplied to Brigadoon due

to its status as a Wyndham-approved supplier. Focusing again

on the question of predominance, the court noted that the more

than 3,000 fax numbers in this subset included those of:

Wyndham franchisees with which Brigadoon had pre-existing

relationships; entities that appeared on Brigadoon’s internal

Goldmine contacts database; businesses that were current and

former customers of Brigadoon whose contact information was

stored in Brigadoon’s Sage 500 accounting system; and

individual hotel/motel representatives who had attended an

industry trade convention and shared contact information with

Brigadoon at that time. Wyndham, the court noted, employed

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 7 of 23
6 No. 21-1358

many different franchise agreements with various hotel/motel

brands. As with the original proposed class, the court concluded that sorting out which of these recipients had engaged

in conduct that met the definition of “soliciting” fax advertisements would require assessment on a case-by-case basis, and

declined to certify the modified class. Gorss appeals both

decisions.

II.

We review class certification orders for abuse of discretion.

Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d 360, 373 (7th Cir. 2015).

The party seeking class certification bears the burden of

demonstrating that certification is proper by a preponderance

of the evidence. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350

(2011) (a “party seeking class certification must affirmatively

demonstrate his compliance with the Rule—that is, he must be

prepared to prove that there are in fact sufficiently numerous

parties, common questions of law or fact, etc.”); Bell, 800 F.3d

at 373. Gorss asserts that the district court abused its discretion

by applying erroneous legal rules to the predominance inquiry.

In particular, Gorss first argues that the court improperly

denied class certification without requiring Brigadoon to

identify any member of the proposed class that provided

express prior permission; instead, Gorss contends, the court

should have required Brigadoon to show with specific evidence that a significant percentage of the class is subject to this

defense. Second, Gorss maintains that the court applied an

erroneous “implied consent” standard for “prior express

invitation or permission” to receive fax advertisements under

the Act rather than employing the standard announced in

Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC, 950

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 8 of 23
No. 21-1358 7

F.3d 959 (7th Cir. 2020), which was decided after the district

court declined to certify a class. Finally, Gorss complains that

the district court erred in denying certification of the smaller

proposed “Wyndham-only” class by treating permission to

receive fax advertisements as transferrable.

A.

Although plaintiffs seeking to certify a class bear the

burden of demonstrating compliance with Rule 23, “prior

express invitation or permission” is an affirmative defense for

which defendants bear the burden of proof at trial. Physicians

Healthsource, 950 F.3d at 964–65. Because Brigadoon carries this

burden at trial, Gorss faults the district court for denying class

certification without requiring Brigadoon to prove that any

class member met the standard for prior express permission set

forth in Physicians Healthsource.

3

 According to Gorss, the court

should have required Brigadoon to show with specific evidence that a “significant percentage” of the class was subject to

this defense, citing the district court decision in Physicians

Healthsource, Inc. v. A-S Medication Solutions, LLC, 318 F.R.D.

712, 725 (N.D. Ill. 2016).

The district court did not err, however, on either the facts

or the law. The predominance inquiry, which “tests whether

proposed classes are sufficiently cohesive to warrant adjudication by representation, ... calls upon courts to give careful

3

 At the time the district court issued its orders denying class certification,

this court had not yet decided Physicians Healthsource. As we discuss below,

although the district court did not have the benefit of Physicians Healthsource

at the time it rendered its decisions, the court did not apply any erroneous

legal standards in deciding the predominance question.

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 9 of 23
8 No. 21-1358

scrutiny to the relation between common and individual

questions in a case.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.

442, 453 (2016). An individual question is one where members

of a proposed class will need to present evidence that varies

from member to member; a common question is one where the

same evidence will suffice for each member to make a prima

facie showing or the issue is susceptible to generalized,

class-wide proof. Tyson Foods, 577 U.S. at 453. The district court

here correctly noted that the question of whether the fax

advertisement was sent without prior express permission was

the key issue to be resolved in order for the proposed class to

recover under the Act. The question for class certification

purposes is whether resolving this key issue is susceptible to

generalized, class-wide proof. 

There are certainly instances in which the issue of prior

express permission might be amenable to class-wide proof. For

example, in some cases brought under the Act, prior express

permission may be given by some uniform means such as

identical product registration forms or standardized end-user

licensing agreements. See e.g. True Health Chiropractic, Inc. v.

McKesson Corp., 896 F.3d 923, 932 (9th Cir. 2018). In circumstances where there is little or no variation in the form employed for obtaining permission, the predominance requirement of Rule 23(b)(3) may be satisfied because prior express

permission, or lack thereof, is ascertainable by examining the

uniform product registrations and licensing agreements. Id.

Similarly, in some cases brought under the Act, where the fax

sender purchased a contact list from a third-party vendor and

made no attempt to seek permission from any of the recipients

before sending the fax advertisement, there is a generalized,

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 10 of 23
No. 21-1358 9

class-wide manner of proving lack of consent. Bridging Communities, Inc. v. Top Flite Fin., Inc., 843 F.3d 1119, 1125 (6th Cir.

2016) (where the plaintiff presented evidence that the fax

sender failed to verify consent with anyone on a list of fax

numbers purchased from a third party, suggesting a class-wide

absence of consent, the sender’s mere allegation that class

members might have given consent in some other way was

insufficient to defeat class certification); Gene & Gene LLC v.

BioPay LLC, 541 F.3d 318, 327–28 (5th Cir. 2008) (noting that

lack of consent to receive a fax advertisement may be decided

on a class-wide basis when the sender obtained all of the fax

recipients’ numbers from a single purveyor of such information, especially in light of a federal regulation which requires

that senders who obtain fax numbers from a commercial

database must take reasonable steps to verify that the recipients agreed to make the number available for distribution). 

In other instances, however, prior express permission is an

issue that must be decided on an individualized basis. For

example, in Brodsky v. HumanaDental Ins. Co., 910 F.3d 285,

291(7th Cir. 2018), the plaintiff had a market agreement with

the fax sender in which he agreed that the sender could

communicate with him by fax, raising the possibility that the

plaintiff consented to receipt of the disputed fax. We noted that

the “question of what suffices for consent is central, and it is

likely to vary from recipient to recipient (or so the district court

reasonably could have concluded),” especially because it was

unclear what agreements the sender might have had with the

other recipients that the plaintiff sought to represent. Id. These

transaction-specific inquiries were the “hallmarks” of an issue

that required individual scrutiny. We therefore held that the

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 11 of 23
10 No. 21-1358

district court did not abuse its discretion when it concluded

that the Rule 23(b)(3) criteria were not met. Id.

The district court similarly did not abuse its discretion here.

The fax numbers that Brigadoon used for this broadcast were

obtained in multiple ways. The numbers were collected

through franchise agreements that were not uniform among

fax recipients; the National Purchasing Network; oral permission or badge swiping at trade conventions; lists of past or

present customers of Brigadoon; or some combination of these

and other sources. Even the smaller “Wyndham-only” list was

collected from a variety of sources including more than ten

different franchise agreements; franchisees that had prior

existing relationships with Brigadoon; Brigadoon’s internal

Goldmine contacts database; prior and existing Brigadoon

customers whose contact information was stored in the company’s Sage 500 accounting system; and individual hotel/motel

representatives who shared contact information with Brigadoon at trade conventions. As the district court noted, Brigadoon made more than vague assertions about prior permission;

it provided specific evidence about the various relationships,

contracts, and personal contacts that it had with the fax

recipients, necessitating individualized analysis of prior

express permission. 

Although Gorss contends that Brigadoon failed to prove

that any single recipient consented, it is not the final merits of

the permission inquiry that matter for Rule 23(b)(3) purposes;

it is the method of determining the answer and not the answer

itself that drives the predominance consideration:

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 12 of 23
No. 21-1358 11

The Rule 23(b)(3) predominance requirement inherently requires the court to engage with the merits of

the case, yet without deciding the merits. To decide

predominance, the court must understand what the

plaintiffs will need to prove and must evaluate the

extent to which they can prove their case with

common evidence. “In other words, a court weighing class certification must walk a balance between

evaluating evidence to determine whether a common

question exists and predominates, without weighing

that evidence to determine whether the plaintiff

class will ultimately prevail on the merits.” Bell v.

PNC Bank, N.A., 800 F.3d 360, 377 (7th Cir. 2015)

(emphases added). We recognize the contradiction

built into the standard. The judge must examine the

evidence for its cohesiveness while studiously

ignoring its bearing on merits questions[.]

In re Allstate Corp. Sec. Litig., 966 F.3d 595, 603 (7th Cir. 2020).

This analysis applies not only to the elements that plaintiffs

must prove but also to affirmative defenses like prior express

permission. See Gene & Gene, 541 F.3d at 327 (predominance of

individual issues necessary to decide an affirmative defense

may preclude class certification). As the district court noted

here, although Brigadoon’s evidence for the fax recipients may

not hold up as constituting prior permission, “there is no

generalized proof that can be used to resolve the issue of prior

permission on a class-wide basis across the various methods

that Brigadoon used to obtain fax numbers.” Gorss Motels, Inc.

v. Brigadoon Fitness, Inc., 331 F.R.D. 355, 360 (N.D. Ind. 2019).

“At class certification, the issue is not whether plaintiffs [or

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 13 of 23
12 No. 21-1358

defendants] will be able to prove these elements on the merits,

but only whether their proof will be common for all plaintiffs

[or defendants], win or lose.” Allstate, 966 F.3d at 604. The

district court did not abuse its discretion in denying certification on the ground that Gorss failed to carry its burden of

demonstrating predominance.

B.

Nor did the district court rely on an incorrect understanding of the legal standard for “prior express permission” when

it analyzed the predominance issue. As we noted, a party that

sends a transmission by fax is liable under the Act only for

unsolicited advertisements. 47 U.S.C. 227(b)(1)(C)(iii). Whether an

advertisement is unsolicited turns on whether the ad was

transmitted without the recipient’s prior express invitation or

permission, in writing or otherwise. 47 U.S.C. § 227(a)(5). 

Although the district court did not explore the limits of the

permission inquiry in its initial ruling denying certification, it

did probe the standard in more depth on reconsideration,

finding that express permission requires that the consumer

understand that by providing a fax number, he or she is

agreeing to receive faxed advertisements. Gorss Motel, Inc. v.

Brigadoon Fitness, Inc., 2019 WL 5692168, *3 (N.D. Ill. Nov. 4,

2019) (citing CE Design Ltd. v. King Architectural Metals, Inc., 637

F.3d 721, 726 (7th Cir. 2011)). CE Design, in turn, relied on the

definition of express permission given by the Federal Communications Commission. 637 F.3d at 726 (citing In re Rules and

Regulations Implementing the Telephone Consumer Protection Act

of 1991, 18 F.C.C.R. 14014, 14129, 2003 WL 21517853) (hereafter

“FCC 2003 Order”)). The district court also correctly noted that

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 14 of 23
No. 21-1358 13

the statute did not require a specific form of invitation or

permission. The court assessed the proposed revised class

definition and again concluded that questions of prior express

invitation or permission were individual inquiries that predominate over common issues. The court emphasized that

Gorss had the burden of establishing that class certification was

appropriate, requiring Gorss to:

proffer a viable method of determining a recipient’s

consent that does not require individualized,

fact-based mini-trials for each potential class member. Answering the bona fide issue of whether a

particular fax was solicited—as Plaintiff argues

Brigadoon must do at this stage—would require an

individualized inquiry. This is telling because the

method of determining the answer, not the answer

itself, is the driving consideration under Rule 23(b).

See Messner v. Northshore Univ. Healthsystem, 669

F.3d 802, 819 (7th Cir. 2012) (noting that Rule

23(b)(3) requires common evidence and methodology, but not common results).

Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 2019 WL 5692168, *5

(N.D. Ill. Nov. 4, 2019). There was nothing erroneous in that

conclusion.

Gorss argues nevertheless that we narrowed the standard

for “express prior permission” in Physicians Healthsource, and

that the district court erroneously applied a less rigorous

“implied consent” standard in denying class certification.

Gorss first cites a number of district court decisions (including

the district court decision in Physicians Healthsource) for the

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 15 of 23
14 No. 21-1358

proposition that the district court here should have required

Brigadoon to set forth specific evidence that a “significant

percentage” of the putative class consented before finding that

individual issues predominate. Gorss then argues that even

though it has the burden of demonstrating that it meets the

Rule 23 requirements, the defendant’s burden of proof on

permission strongly affects the analysis on Rule 23(b)(3)

predominance, allowing courts to consider only those permission claims that a defendant has actually advanced and for

which it has presented evidence. 

But Brigadoon did advance a plausible permission defense

and it did present evidence in support of that defense to the

district court. At the class certification stage, the court was not

required to determine the merits of that defense but only to

consider whether determining the merits would require

individual inquiries rather than class-wide proof. Obviously,

if Brigadoon’s claim of permission were based on a legally

flawed definition, the company’s argument regarding predominance would fail. But the district court did not rely on a

flawed definition of prior express permission; it applied a

definition that was consistent with the standard we later

announced in Physicians Healthsource: that express permission

requires that the consumer understand that by providing a fax

number, he or she is agreeing to receive faxed advertisements.

The refinements that we made to that standard in Physicians

Healthsource do not affect the predominance analysis in this

case because, under either definition, Gorss has offered no

generalized class-wide manner to resolve the permission

question. 

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 16 of 23
No. 21-1358 15

In Physicians Healthsource, we sought to give a clear standard for prior express invitation or permission that was

consistent with the FCC’s guidance, including the FCC 2003

Order as cited in CE Design, as well as a 2006 Order from the

FCC. 950 F.3d at 965. We began by noting that we are bound by

the FCC’s interpretation when it has not been appealed, as is

the case here: 

In its 2003 Order, the FCC explained that “[e]xpress

permission to receive a faxed ad requires that the

consumer understand that by providing a fax

number, he or she is agreeing to receive fax advertisements.” 18 FCC Rcd. at 14129. Per the FCC, such

permission may be written or oral. In the Matter of

Rules & Regulations Implementing the Tel. Consumer

Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21

F.C.C. Rcd. 3787, 3811 (2006). That said, the FCC has

explicitly found that “negative options,” in which a

sender presumes consent unless advised otherwise,

are insufficient to prove express permission. Id. at

3811 n.168 (explaining that “[a] facsimile advertisement containing a telephone number and an instruction to call if the recipient no longer wishes to

receive such faxes, would constitute a ‘negative

option’ ”); see also 18 FCC Rcd. at 14130 (“ ‘negative

option[s]’ [are] contrary to the statutory requirement

for prior express permission or invitation”).

950 F.3d at 965. 

Consistent with this interpretation, we concluded that

evidence of permission to generally send faxes does not

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 17 of 23
16 No. 21-1358

establish prior express permission to fax advertisements. 950

F.3d at 966. We also rejected any claim that post hoc statements

that an individual would have given consent sufficed because

they do not demonstrate that the fax sender had prior express

permission to send the faxes. Instead, in order to demonstrate

that the recipient has given permission on an ongoing basis to

fax advertisements:

the consumer must affirmatively and explicitly give

the advertiser permission to send it fax advertisements on an ongoing basis. The invitation or permission cannot simply authorize a single, specific fax, or

state that the consumer consented to receive faxed

ads from the defendant in the past. Instead, it must

explicitly convey that the consumer gives the advertiser ongoing permission to send ads via fax until

such time as the consumer withdraws its consent. 

Physicians Healthsource, 950 F.3d at 966. 

Applying this rule in Physicians Healthsource, we considered

the three categories of evidence that the fax sender claimed in

support of its defense of prior express permission. First, we

found that the defendant could not meet its burden on prior

express permission by showing that the recipient agreed to

receive “product information” by fax after a purchase of goods

or services, unless the language also suggested that the consent

included promotional materials or information regarding

products not yet purchased, i.e., advertising. 950 F.3d at 967.

Moreover, evidence that one consented to a fax advertisement

in the past and would have consented to receive faxed ads

again if asked would not be sufficient to meet the standard. Id.

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 18 of 23
No. 21-1358 17

Nor would general permission to receive faxes suffice. 950 F.3d

at 965–66. Because those three categories of evidence covered

the universe of the asserted defense, the court in Physicians

Healthsource was able to decide the issue of prior express

permission on a class-wide basis. Moreover, to the extent that

such permission had been given, it was undisputed that it had

been given to the defendant’s predecessor-in-interest, not the

defendant, and we concluded that the permission was not

transferrable to a third party. 950 F.3d at 967.

None of this is contrary to the district court’s analysis in the

present case. In this instance, Brigadoon demonstrated that it

had a large variety of contracts, relationships, and personal

contacts with the recipients of the faxes. Hotels and motels like

Gorss signed franchise contracts in which they agreed to use

approved vendors like Brigadoon to stock and furnish their

motels and hotels. Some of the franchisors, including

Wyndham, also required franchisees to use approved vendors

to remedy deficiencies identified during inspections, and those

franchisees agreed in Property Improvement Plans that their

contact information (which in some cases included fax numbers) would be provided to vendors so that the vendors could

offer their products and services, in other words so that the

vendors could advertise their products and services to the

franchisee. Some of the recipients operated under the National

Purchasing Network, a members-only buying network for

hotels and motels, for which Brigadoon was an approved

vendor. And some of the recipients attended trade shows

where they provided their contact information, including fax

numbers, to vendors at those events after requesting sales

materials. Brigadoon also identified hundreds of recipients

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 19 of 23
18 No. 21-1358

with whom it had prior business arrangements that would

have to be examined individually to assess permission to

receive fax advertisements. And of course, Brigadoon also

identified recipients who appeared on the fax list from multiple

sources. At the class certification stage, the court’s only task

was to determine whether the plaintiff had carried its burden

of demonstrating that there was some sufficiently cohesive

class-wide way to resolve the permission issue to justify class

certification. The district court acted within its discretion in

finding that Gorss, which has yet to propose a class-wide

method of resolving this issue, failed to meet its burden under

the predominance standard.

We add that Gorss’s reliance on district court cases to

establish a rule that defendants must present evidence of

permission given by a “significant percentage” of the proposed

class to defeat class certification reflects an over-reading of

those cases. True, the district court in Physicians Healthsource

and district courts in other cases found that where defendants

presented specific evidence showing that a significant percentage of the putative class consented to certain contacts, issues of

individualized consent predominated over any common

questions of law or fact. But Gorss conflates that which is

sufficient to answer the predominance question with that which

is necessary. Gorss points to no appellate court decision

requiring this “significant percentage” evidence, and there are

many ways to demonstrate that issues of individualized

consent predominate over any common questions as Brigadoon demonstrates here. See True Health, 896 F.3d at 931–32 (a

defendant can produce evidence of a predominance-defeating

consent defense in a variety of ways).

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 20 of 23
No. 21-1358 19

In short, Brigadoon’s claim of permission was not speculative, vague or unsupported; it was based on a multitude of

contracts, relationships, memberships and personal contacts,

evidence sufficient for the district court to conclude that classwide analysis of the permission issue would not be feasible. In

fact, two of our sister circuits have concluded that Gorss

provided prior express permission to approved vendors for

advertising faxes through the 2014 version of its franchise

agreement with Wyndham, an agreement that Gorss signed

after receiving the fax at issue here. See Gorss Motels, Inc. v.

Lands’ End, Inc., 997 F.3d 470, 476–80 (2d Cir. 2021); Gorss

Motels, Inc. v. Safemark Systems, LP, 931 F.3d 1094, 1100–02 (11th

Cir. 2019). Those courts considered the language of the 2014

franchise agreement that governed at the time each allegedly

offending fax was sent, as well as the vendor programs in place

for franchisees in deciding whether the standard for prior

express permission was met. These cases demonstrate that the

language and nature of a particular franchise agreement as

well as other factors may amount to prior express permission

to receive fax ads as that term is defined. With proposed class

members signing many different franchise agreements with

different franchisors at different times, determining whether

franchisees gave prior express permission for fax advertisements is an individual rather than a common question, or so

the district court could have reasonably found. When a court

also considers the other sources of possible permission that

Brigadoon presented here, such as trade show interactions,

membership in a purchasing network, and prior communications during business dealings, it becomes all the more apparCase: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 21 of 23
20 No. 21-1358

ent that the district court was within its discretion in finding

that individual questions predominated.

C.

The final issue is whether the district court erroneously

allowed Brigadoon to rely on permission to Wyndham that

was “transferred” to Brigadoon. According to Gorss, for the

Wyndham-only class, the court should have found, on a classwide basis, that any permission that franchisees granted to

Wyndham in franchise agreements was not “transferrable” to

vendors like Brigadoon. In support of this argument, Gorss

cites Physicians Healthsource, which rejected the idea that “a

company could solicit express prior permission to send fax

advertisements, then transfer that permission to a completely

different company,” finding that “such a practice could

eviscerate the entire statutory scheme which is designed to

protect consumers from receiving unwanted contact from

unknown entities or individuals.” Physicians Healthsource, 950

F.3d at 967. In that case, the defendant had purchased part of

another company’s business, and in the process acquired a

customer database listing fax numbers. We found that permission to send faxed ads granted to the original company did not

transfer to the successor that acquired the contact list in the

purchase. 950 F.3d at 967–68. 

But we also distinguished that scenario from the circumstances alleged here. In this case, Brigadoon has provided

evidence that class members arguably granted permission in

franchise agreements to receive faxed advertisements not only

from the franchisors but from the franchisors’ approved

vendors and affiliates. We found that consenting to the ability

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 22 of 23
No. 21-1358 21

of a group of individuals to send faxed ads was distinguishable

from permission given to one entity and then transferred to

another. Physicians Healthsource, 950 F.3d at 968. When permission is granted broadly to a group of possible senders, those

senders may be able to demonstrate that the statutory defense

of prior express permission or invitation has been met. See also

Gorss, 997 F.3d at 480–81 (applying the Seventh Circuit’s

reasoning from Physicians Healthsource and concluding that a

franchise agreement between Wyndham and Gorss expressly

permitted both Wyndham and its affiliates to send faxed

advertisements); Gorss, 931 F.3d at 1100–02 (“A fax recipient

may provide his express permission to receive faxes from third

parties, which the hotels did when they agreed in their

franchise agreements with Wyndham to receive assistance with

purchasing items from Wyndham affiliates.”). The district

court committed no legal error on the issue of transferred

consent.

III.

At the class certification stage, it was not Brigadoon’s

burden to prove the merits of its permission defense, which it

supported with a viable theory and specific evidence. Rather,

it was the plaintiff’s burden to demonstrate that common

issues of law or fact would predominate when resolving the

question of permission later, at the merits stage. The district

court did not abuse its discretion in finding that Gorss failed to

meet that burden.

AFFIRMED.

Case: 21-1358 Document: 00713988622 Filed: 04/15/2022 Pages: 21

USDC IN/ND case 1:16-cv-00330-HAB document 155 filed 04/15/22 page 23 of 23